By Tom Perreault
Latin America is in the midst of a resource boom. As mining, oil, and gas extraction have intensified throughout much of the region over the past two decades, so too have associated social and environmental impacts. Latin American states vary in their response to these impacts, but nearly all have implemented various forms of public and community consultation mechanisms for populations negatively affected by extractive activities. Responding to international norms established through the International Labor Organization and the United Nations, such measures are putatively intended to establish an informed, respectful dialogue between the state, extractive firms and residents of affected communities. In Bolivia, consultation is incorporated into statutory law, legal codes governing natural resource sectors, and the 2009 Constitution. The legal right of Bolivia’s indigenous, originario and campesino peoples to consultation is especially well established. (‘Originario’ is a term of self-identification commonly adopted by peoples of indigenous origin in the Bolivian Andes – as opposed to ‘indígena,’ which is more commonly used by indigenous peoples in the country’s eastern lowlands. Both terms are used in the Constitution and other legal documents, as well as public discourse.) Although it is written into law and policy, consultation in practice – the ways in which such rights are enacted – tells a different story. It frequently involves only pro forma participation on the part of affected community residents, and both the topics of discussion and rules for participation tend to be narrowly defined and highly circumscribed by the state and industry officials in charge of running the meetings.
Governing environments, governing relations
There exist a variety of participatory and consultative mechanisms related to resource extraction and development practices in Latin America, resulting in some slippage among the terms employed. Perhaps the best known type of consultation is Free, Prior and Informed Consent (FPIC), sanctioned by the International Labor Organization’s convention 169 concerning indigenous and tribal peoples (hereafter ILO 169) and the United Nation’s Declaration on the Rights of Indigenous Peoples (UNDRIP). In Bolivia, FPIC is contained within the set of practices referred to as consulta previa (prior consultation), implemented in indigenous (but not campesino) communities impacted by hydrocarbons development. While consulta previa approximates the ideal of FPIC, and has been promoted by Bolivia’s MAS government as conforming to international standards established under ILO 169 and UNDRIP, it is expressly non-binding. Thus, while we may speak of prior consultation (consulta previa) in Bolivia, this should not be confused with consent, which is not required for extraction to proceed. A second use of the term “consulta” in Latin America refers to non-binding public referenda, held with or without state cooperation, and designed to gauge public opinion regarding extractive activities. Well-publicized examples of such consultations have been held in relation to mining projects in Peru, Guatemala, Argentina and elsewhere. To date, no public consultas of this sort have occurred in Bolivia. A third use of the term “consulta” refers to informational meetings held for the general public (but intended primarily for populations impacted by extractive activities). In contrast to FPIC and public referenda, public consultations of this sort have received far less attention in the academic literature. As practiced in Bolivia’s mining sector, this type of consultation takes two forms: consulta pública and audiencia pública. Consultas públicas are required by law as part of the Environmental Impact Assessment (EIA), and are initiated and administered by the mining firm. Audiencias públicas are initiated at the request of communities, and are administered by the state (via the Ministry of Environment). These forms of consultation have become integral to the governance of mining in Bolivia.
Consultation and its contradictions
The right of Bolivia’s indigenous peoples to consultation regarding development activities on their lands, or which affect the environments and resources on which they depend, was first established in 1991 by Law 1257, which ratified ILO 169. Perhaps unsurprisingly, however, the regulatory statutes (reglamentos) necessary for the law to function remained unfinished for over a decade, preventing the law’s implementation. Full legal adoption of consulta previa would have to wait until 2007, when Congress adopted Law 3760, which incorporated the 46 articles of the United Nations’ Declaration on the Rights of Indigenous Peoples. Finally, the Bolivian Constitution, reformed during a contentious constitutional assembly and popularly ratified in 2009, establishes the right of indigenous, originario and campesino peoples to consulta previa regarding extractive activities occurring on their lands (Oxfam/DPLF 2011). Section 15 of Article 30 of the Constitution states that indigenous, originario and campesino peoples have the right “To be consulted via appropriate procedures, and in particular through their own institutions, each time that legislative or administrative measures likely to affect them are foreseen. In this context, the obligatory right to prior consultation will be respected and guaranteed by the State, in good faith and agreed upon, with respect to the exploitation of non-renewable natural resources in the territory they inhabit” (my translation, emphasis added). Moreover, Section 16 of Article 30 goes on to state that indigenous, originario and campesino peoples have the right “To participation in the benefits of the exploitation of the natural resources in their territories.” Furthermore, the right to “live in a healthy environment, with adequate management and use of ecosystems” is guaranteed in Section 10 of the same Article, a right that is extended to the entire population of Bolivia in Article 33.
Similar provisions for consultation are incorporated into sector-specific laws governing hydrocarbons and mining. In the case of the Hydrocarbons Law, Article 115 states, “Consultation is obligatory and the decisions that result from the Consultation process should be respected.” The same article goes on to specify that consultation must occur prior to the authorization and approval of hydrocarbons development projects, and prior to the approval of the required environmental impact study. Importantly, however, an ‘opt-out’ clause in the hydrocarbons law permits the state to ignore the results of consultation. Article 116 of the law states, “In a case where the consultation, recognized in Article 115, has a negative result, the State can promote a process of reconciliation in the greatest national interest.” In other words, if the state determines that a project is in the national interest, it is not obligated to abide by community wishes, even if the community is strongly opposed to extraction.
In contrast to hydrocarbons legislation, the 1997 Mining Code (Código de Minería, Law 1777) is somewhat less specific with regards to consultation. The only mention of consultation comes in Article 15, which states, “The precepts of Article 171 of the Political Constitution of the State [in force in 1997], and the dispositions pertinent to Convention 169 of the International Labor Organization ratified by Law No. 1257 of July 11, 1991 are applicable in the mining sector.” While this stipulation has the potential to ensure adequate consultation, no specific laws or regulations exist concerning consultation. As a result, consulta previa has never been implemented in Bolivia’s mining sector, and the principles of free, prior and informed consent simply do not apply in relation to mining. Instead, consultation takes the form of consulta pública (public consultation), as opposed to consulta previa(prior consultation), and is intended to inform residents of affected communities of the impacts of mining and mining-related projects. These forums are conducted as part of the environmental impact assessment (EIA) process, a requirement to obtain the mandatory environmental license (licencia ambiental) needed to initiate a project. Thus, as with consulta previa in the hydrocarbons sector, consulta pública is conducted as part of the EIA process, before the results of EIA are known. As a result, participants in consulta pública forums cannot know the full implications of the project under discussion. Moreover, both critics and supporters of the mining sector emphasize that while consultation may be obligatory, abiding by its results is not. Given the vagueness of the law and the political economic power of the mining industry on the Altiplano, neither the state nor the mining companies feel obliged to take community input into consideration.
Unfortunately, however, state accountability has been called into question by President Evo Morales himself – Bolivia’s first indigenous president – who has made public statements intended to delegitimize and denigrate the very principles of community consultation. For instance, Morales has referred to consultation as a “waste of time”, an “obstacle” to development, and a form of “blackmail” (chantaje), whereby various indigenous groups demand money from the government or extractive firms. Such language is reminiscent of accusations made by former Peruvian President Alán García, a noted neoliberal, who famously called indigenous peoples and environmentalists “dogs in the manger” (perros del hortelano), who do not adequately use the country’s natural resources, even as they seek to prevent others from using them. Why has Morales displayed such hostility toward consultation, even as he has promoted the rights of indigenous peoples? In my opinion, the answer to this paradox can be found in Bolivia’s ongoing structural dependence on extractive industries (natural gas and minerals are the country’s most important exports and sources of income). Moreover, Morales and his MAS party have formed political alliances with mining interests and coca growers – sectors who benefit from the expansion and intensification of resource extraction, as well as other activities (such as road building) that could be slowed by community consultation.
Clear tensions exist, then, between the government’s pro-environment, pro-indigenous rights discourses, on the one hand, and its commitment to resource extraction, on the other. In the mining sector, this tension is encapsulated in the practice of public consultation, which is intended to inform affected populations of the impacts of extractive activities and gather community input, but which may then be ignored by private firms and the state. The power relations inherent in these arrangements are as obvious as they are inequitable. Through my research into consultation mechanisms in Bolivia’s mining sector, I have learned that the consultations themselves are highly regimented and carefully scripted – from the rules for speaking to the seating arrangements to the ways questions are answered. Participation on the part of community residents tends to be tightly controlled by the state or company officials in charge of running the forums. And because the results of the consultation are non-binding, residents’ concerns, while recorded, are rarely taken into account in planning and implementation of mining projects. Consultation mechanisms – like many forms of ‘participatory’ development – functions as a sort of performance, in which state officials, and company representatives, and community residents all play a role in what amounts to a carefully managed and highly predictable process. In this sense, consultation mechanisms in Bolivia’s mining sector provide the appearance, but not the substance, of democratic participation.
So is consultation a waste of time? Should it be scrapped in favor of something else (such as direct action, lawsuits, or simple acquiescence)? No. Whatever its flaws and limitation, the right to consultation – written into law and sanctioned in the Constitution – represents an important advance over the days when the state and mining firms had carte blanche to act, without the need to discuss their plans with affected populations. The right to consultation – like all rights – represents a powerful lever for community members and their allies to confront mining capital and the state, and hold them accountable.
Tom Perreault is Professor of Geography at Syracuse University